In Egypt, Whose Constitution?

By Yasmine El Rashidi - NYBR

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Published on Friday, 04 January 2013 06:04

One measure of how complicated Egyptian politics has become is that hardly anyone was surprised by the outcome of the constitutional referendum in late December. Amid the largest anti-government protests since the 2011 revolution, and following defections from his own cabinet and supporters, President Mohamed Morsi orchestrated a 64 percent approval vote for a new constitution. It had been hastily drawn up by his political allies and subjected to withering criticism; and that there was low voter turnout and widespread indications of tampering. Nonetheless, the result seemed to show that, for all the millions of Egyptians who have lost patience with the new leadership, there are many others who continue to crave stability, even if the price is another authoritarian government.

What has become clear is that it is impossible to judge what has happened over the past few weeks without also examining the setting in which Mohamed Morsi rose to power: from his starting-point as the “stand-in” candidate of the secretive Muslim Brotherhood (their first choice was the Brotherhood oligarch and financier Khairat El-Shater), to the attempts to undercut his rise by the Supreme Council of the Armed Forces (who, anticipating a possible Islamist election win, drafted a constitutional annex last June designed to severely undermine the authority of the presidency), to the bloated bureaucracy he inherited that has remained largely stuck in the secular-authoritarian mindset of the fallen regime. It is amid these conflicting forces that Morsi has tried to negotiate his first five months in office—and to carve out new powers of his own.

When Morsi gave himself sweeping new executive powers in a constitutional declaration on November 22, he did so with the intent (or so he said) of securing a “democratic transition” that seemed in his view threatened by the judicial arm of the old regime in collusion with other forces. The declaration was made hours after Morsi had been lavishly praised for mediating the Gaza ceasefire: Hamas leader Khaled Meshaal said he “acted like a real Muslim and Arab leader” while Hillary Clinton commended his “personal leadership.” But it also came just days before the Supreme Constitutional Court (SCC) was set to rule on the legitimacy of the Shura Council, the upper house of parliament, and on the Islamist-dominated Constitutional Assembly that had been given the work of drafting a constitution for the new Egypt. At the time, it seemed almost certain that the high court would dissolve both the Shura Council and the assembly, and by issuing the decree, Morsi seemed to preempt the decision.

The seven-point decree had been structured and worded with evident sensitivity to the secular opposition. It called, in a wordy first article, for a re-investigation of “the cases of the murder, the attempted murder, and the wounding of protesters, as well as the crimes of terror committed against the revolutionaries by anyone who held a political or executive position under the former regime.” It also gave the president direct control over the government’s prosecutor general, who had been fired by Morsi on October 11 and would now be replaced by someone of the president’s choosing for a fixed four-year term. The controversial Article V, which gave Morsi even more powers than Mubarak ever had on paper, was, it appeared, strategically slipped at the end of an otherwise “revolutionary” declaration, and stated simply, “No judicial body can dissolve the Shura Council or the Constituent Assembly.” And at the very end, a note that “the President may take the necessary actions and measures to protect the country and the goals of the revolution.”

The Supreme Judicial Council—the country’s highest body of judges‚—called the decree an “unprecedented assault,” and a public protest movement was spontaneously ignited. Many liberal and secular politicians who had stood up in June when Morsi was elected and said they were willing to work with him, to give him a chance, now said they had been mistaken, that “he is worse than Mubarak.” Moderate Islamists such as the former Muslim Brother and presidential candidate Abdel Moneim Aboul Fotouh condemned the decree. And even the “party of the couch”—the “silent majority” who during the revolution and its aftermath mostly stayed home—were driven to the streets.

On Tuesday, November 27, people who had never been down to Tahrir before said they were going. My mother, who supported the revolution but had been too wary of the crowds to go to the square herself, put on her walking shoes, and marched to the square with a group of friends. “It’s amazing,” she kept telling me. “All my fear has suddenly gone. He [Morsi] pushed it too far.” People chanted for an end to the rule not of Morsi, but of the Supreme Guide of the Muslim Brotherhood, Mohamed Badie, who is thought to be running the show. The protest that day, which extended across cities nationwide, was the largest the country had seen since the January 25 uprising.

For all the popular support he had won in his narrow defeat of former Mubarak minister Ahmed Shafik in the presidential elections, and then for reigning in the armed forces when he retired its top generals in July and annulled a decree giving them veto powers over the constitution, Morsi was losing ground fast. The National Salvation Front, an opposition coalition formed days after the November 22 decree and headed by former International Atomic Energy Agency chief Mohamed ElBaradei, called on people to stand up against “the dictatorship.” It also called for the president to rescind his decree. On Facebook and in the opposition press, Morsi’s image was superimposed on Mubarak’s, on Hitler’s, on the body of a Pharaoh.

Speculation about what would happen next was rife. Violence would break out. The army would step in. Morsi would be ousted. Instead, the president announced that a draft constitution would be ready within two days (November 29), thus spurring the Islamist-dominated assembly to act before the Constitutional Court dissolved the body. The remaining members of the assembly were convened, and in a marathon seventeen-hour televised session that began at 2:40 PM on Thursday and ended at 6:40 AM Friday, the 236 articles of the draft constitution were reviewed, revised, and voted on. In the scramble to finish before the next working day—before there was time for the assembly to be dissolved or Morsi’s decree to be rescinded or the presidency to fall—the head of the Constitutional Assembly, Hossam Al-Ghiryani, an Islamist and career judge, impatiently pushed the members to finish, haranguing them for arguing over some of the clauses.

In one incident, which friends and I watched with a combination of horror and bemusement, sixteen members of the assembly voted against a draft article, meaning it would need to be discussed. Al-Ghiryani, flustered, said he would have to take a vote count again; otherwise they would be there until the morning, wasting time, discussing details unnecessarily. The assembly voted again; this time only four members objected. The article was passed, its wording unchanged. In the session’s final hours, several articles were hastily added to resolve lingering issues or disputes or requests. The resulting document was presented to the president on December 1, and in accordance with the law, a referendum date was set for two weeks later. On December 2—the day the SCC was to rule on the Constitutional Assembly—Islamists surrounded the court as a precautionary measure, refusing to let any of the judges in. The court has yet to convene.

The opposition were quick to denounce the draft text as “illegitimate,” and memos and flyers began circulating outlining why the document was a blow to the ideals of the revolution and the democracy it hoped to achieve. On independent talk shows and across social media sites, the constitution was dissected. The Islamists argued that to vote “yes” to the document was to vote for stability and God.

The new constitution borrows heavily from the one drafted in 1971, which had been in force for decades. Some articles remain untouched, but many more have been added. Particularly controversial are the new charter’s ambiguous use of language; its persistent references to religion (Al-Azhar, the country’s highest religious institution, has been given a formal role in interpreting Sharia—the main source of legislation); its failure to address women’s rights in a forceful way; its lack of adequate protections for human rights and for workers (a decree issued by Morsi has already changed the rules governing labor unions, giving the Brotherhood more clout). Some articles seem to be upholding abstract rights while, at the same time, creating ways for them to be taken away in practice: one article seeking to protect people’s dignity, for example, places a prohibition on “insulting humans,” phrasing that could contradict freedom of expression. Another maintains that the state will protect the “true nature” of the Egyptian family and “promote its morals and values,” which could provide constitutional support for censorship of books, films, and other media.

Critics have also expressed concern that the constitution’s references to Arabization and the Muslim world show the Islamists to be more preoccupied with laying the groundwork for an Islamic caliphate than with promoting the interests of Egypt. Among other provisions, the constitution decreases the number of members on the SCC from 18 to 11—a move that is worded in a manner intended to get rid of the outspoken, secular, members of the court, such as the female judge and Mubarak appointee Tahani El-Gebaly. And in a gesture that confirmed what many knew of the Muslim Brotherhood’s relations with the army, and the group’s prudent efforts to keep the military leadership pacified and on its side, the constitution puts the armed forces above public oversight and accountability, protecting their vast economic assets and privileges (among other things, the army is not taxed). On the other hand, human rights organizations have commended some of the document’s basic guarantees of protection against arbitrary detention and torture, as well as of freedom of movement and privacy of communication.

With a referendum date in sight—December 15—and no prospect of compromise on Morsi’s part, the street protests began to escalate. By December 4, tens of thousands of Egyptians had gathered outside the presidential palace to protest the Brotherhood’s rule. For decades, the walls of the palace and the area around it had been zoned off and secured, off-bounds to all but those with business in the area. Now, suddenly, young men were hanging over the palace gates, people were holding animated discussions with the soldiers manning the towers, and men and women, old and young, were walking around with spray paint cans in their hands, drafting messages to the Brotherhood on the palace walls that despotism had been defeated with Mubarak. On the tarmac outside one of the gates, a giant swastika swallowed the street. The notoriously aggressive riot police retreated and disappeared, and the presidential guards stood by, watching.

That evening, as protesters reached the walls of the palace, Morsi was ushered out a back door, and chauffeured speedily home. Sources say he later received senior members of the Muslim Brotherhood, who spent several hours discussing the situation. The following evening, when clashes broke out between the anti-Morsi protesters, who had been demonstrating peacefully for days, and the Morsi supporters (known as Moristas) who had arrived in droves and disrupted the palace sit-in, people close by said that Morsi had been in on the plot. Video footage from that day reveals what look like plainclothes state security agents working with Moristas to tear down protesters’ tents and aggressively breaking-up the sit-in.

I had arrived late, and by the time I got there the streets surrounding the palace were already littered with signs of revolt. Broken glass, metal, the debris of scuffles and battles with rocks. There had been gun battles, and at least a few people were rumored dead. Tensions were high, and as I lingered on an anti-Morsi battlefront, I watched young men with hoodies and big Afro-like haircuts pummeling with their fists and sticks any bearded man who got in their way. After one such beating, I listened in as a group of young men discussed criteria: “I mean, c’mon guys, who are we beating up here? I mean, look at you—you have the beginnings of a beard. What makes you okay and the other guy not?”

Numerous people I know were injured. A long-time family friend, a seasoned activist, was beaten black and blue; an image of her started circulating on Twitter, her face swollen and disfigured. On live TV, she later described being beaten by pro-Morsi Islamists. In the days that followed, more and more people came out with stories of being beaten, held, and threatened. One man, missing an ear, said it had been bitten off. I was threatened myself, with the slitting of my throat. On TV talk shows, the word “militias” kept popping up. Hosts who had been vocal in supporting Morsi during the presidential elections began apologizing to their viewers.

Everyone waited after the clashes, expecting the president to address the nation. “We are in a serious crisis,” the NSF member and former Minister and parliamentarian Mounir Fakhry Abdel Nour told me. “It is in the president’s hands.” As with Mubarak’s before him, Morsi’s speech seemed to come a day too late, and when he finally spoke, he blamed the violence on interference and third parties, paid thugs and people trying to stir chaos and dissent —the standard line the Islamists had been using since the attacks at the palace, and one that was familiar from Mubarak’s days. He spoke less as a president, than as a Muslim Brother defending his own. He made no mention of the fact that his supporters—as videos revealed—had instigated the violence. He seemed, in fact, somewhat oblivious to the extent of the brutality. Instead, he said he was convening a national dialogue meeting at the palace the following Saturday where “matters” would be discussed.

With few exceptions, members of the opposition refused to attend, and the national dialogue turned into a meeting of Morsi’s supporters, who insisted that the referendum be held as scheduled. The November 22 decree was rescinded and replaced with another, in effect up until the referendum. Meanwhile, street protests continued, with talk of imminent violence, or even civil war. On the morning of December 11, at a local sporting club where retired ministers and officials are often found poolside, a former Interior Ministry chief warned that the Interior Ministry could no longer contain the situation and that the army would be forced to intervene. That afternoon, the army made its appearance, putting out an invitation on Facebook for a “national dialogue” meeting the following day. The president’s office reacted, saying the invitation was a rumor. The army responded that the president would be attending. The president’s office said he wouldn’t. The army responded by changing the wording—it became a “humanitarian dialogue” and “luncheon.” Eventually, after what felt like hours of back and forth, the president’s office said Morsi would be attending “given that the invitation had come upon counsel from him.” Politics would not be discussed, and lunch would indeed be served.

The next afternoon, the lunch was cancelled. The Supreme Guide of the Muslim Brotherhood had intervened; it could not be seen that the Armed Forces was capable of gathering all factions, including the president, in a national dialogue, while the president himself had utterly failed at attempting the same.

In the days leading up to the referendum, the president’s allegations that paid thugs were behind the violence were proven wrong, and evidence emerged that people who were killed and initially reported to be members of the Muslim Brotherhood were in fact opposition protesters. Leaders of the Muslim Brotherhood incited antagonism towards the Copts, and the ultra-orthodox Salafis declared Jihad in the name of an Islamic state. At a sit-in outside Media City, where most independent TV stations host their programs, Salafis attacked and threatened TV guests, and scrawled the names of TV hosts on cattle, slaughtering them for lunch. An assassination list of sixty-six individuals was also released—among them, Egypt’s most outspoken TV hosts—and leading figures in NSF, including Elbaradei and Moussa, were, momentarily, being investigated by the state prosecutor on charges of treason.

Despite the growing turnout at protests against the constitution, and the fact that the judges meant to be monitoring the referendum said they would boycott, everyone still anticipated that the “yes” vote would win—with the aid of tampering techniques inherited from Mubarak’s days. Just 33 percent of registered voters participated over the two voting days (December 15 and 22) and at every station I went to both in Cairo and beyond, the majority of those queued up said they were voting against the draft constitution. (It is worth noting that voters seemed to have actually read it.) In spite of plentiful video evidence of fraud, the government’s Supreme Elections Committee dismissed 15,000 allegations of election violations as unfounded, and declared the elections “impartial and fair.” The new constitution was signed and declared in effect by Morsi on December 26.

While the new constitution raises many important questions, the more immediate problem may be the larger political divide that has opened during its passage. There is not only a crisis of trust (as a source close to the Brotherhood’s leaders said, “Morsi is simply overseeing the presidential file for the Supreme Guide’s Office, and so in negotiating with him you are simply speaking to a messenger”). There are also the very clear beginnings of sectarian and civil strife, a conflict that does not so much pit Islamists against secular people, but rather the Brotherhood against an opposition of many different stripes. In the months since Mubarak stepped-down, the Islamist-backed vote has steadily declined while voter turnout has similarly diminished; many moderate Islamists themselves have turned against Morsi.

In the months to come, the president will have not only to engage the growing opposition, but to regain the trust of a public that view him as a mere pawn in a larger Brotherhood scheme. As his government scrambles to keep the structures of the state intact, confidence in his capacities as a president is waning. Hours after the referendum finished, his vice-president resigned, followed by several of his ministers—one of them citing an inability to work in the current government culture. With a cabinet shuffle imminent, it is unknown who will accept posts and whether the Islamists will dominate there too. With the mainly Islamist Shura Council now holding legislative powers until the parliamentary elections, the prospects of any reconciliation with the opposition seem slim. When Morsi addressed the Shura Council’s opening session on December 29, speaking about the economy and the need for “unity” and “collaboration,” the opposition dismissed it as “ empty rhetoric.” They have repeatedly turned down his calls for “national dialogue.”

Even more critical may be the economy: since the revolution, the country’s reserves have plummeted and investment is down sharply. When Morsi announced tax increases on a variety of goods and services during the constitutional crisis, his own Brotherhood were quick to respond, saying their “permanent position is the rejection of any economic policies that might add to the burdens of lower-income groups.” At 2 AM the following morning, it was announced on Facebook that the decree was suspended. But with tax increases and subsidy cuts a requirement of foreign loans such as the IMF’s $4.8 billion package, the government is in a quandary. This past week, the Egyptian pound dropped, repeatedly, in value, and banks tightened their grip on the dollar—at banks, tellers refuse to disburse sums as small as $100 to clients seeking to buy hard currency from their Egyptian pound accounts. “New regulations,” they say. On the black market, I hear: “We’re short, maybe in a few days.” On every corner, in grocery stores, and at street-side kiosks, people are complaining about the cost of living; prices of basic goods have gone up, crime is increasing, and the theft of parked cars has become commonplace. As the pound continues to fall and economic austerity measures are eventually implemented, the street protests that the government has become accustomed to will most likely take a turn of their own, away from the peaceful protests demanding change, to the more desperate food riots that the country has seen in the past. I hear, more and more, people wishing for the army to intervene.

On TV some nights ago, the legendary newspaper editor Mohamed Hassanein Heikal, who has provided counsel to Egypt’s past presidents and was called on by Morsi as well, addressed millions of viewers. “I have advised the president on the current crisis,” he said, in his deep, calm, knowing voice. “But you know, he has many people around him, each guiding him in a different way. Right now in Egypt, we have a fissure. Let’s not allow it to turn into a chasm.”